’n Unieke en sorgsame Vallei van uitmuntende dienslewering, geleenthede en groei.
Intlambo ekhethekileyo enenkathalo, egqwesayo kuniko-zinkonzo, ivulela amathuba kwaye iphuhlise.
A unique and caring Valley of service excellence, opportunities and growth.
LAND MANAGEMENT AND DISPOSAL POLICY
INDEX
PART 1: PREAMBLE
PART 2: PURPOSE
PART 3: LEGISLATIVE AND POLICY FRAMEWORK FOR THE MANAGEMENT OF
BREEDE VALLEY MUNICIPAL PROPERTY ALIGNMENT WITH
MUNICIPAL STRATEGIC GOALS AND OBJECTIVES
PART 4: APPLICATION OF THIS POLICY
4.1. Core Principles
4.2. Fixed Asset Register
4.3. Categories of Municipal Land
4.4. Method of disposal or transfer
4.5. Projections, projecting structures and encroachments
PART 5: SHORT TITLE AND COMMENCEMENT
1
PART 1: PREAMBLE
WHEREAS the Municipality has the right to govern on it’s own initiative the local
government affairs of its community, subject to national and provincial legislation, as
provided in terms of section 151(3) of the Constitution and section 4 of the
Systems Act.
AND WHEREAS section 14 of the Local Government: Municipal Finance
Management Act, 2003 (Act 56 of 2003) – [MFMA] provides for the disposal of
municipal capital assets; and
AND WHEREAS the Municipal Asset Transfer Regulations – [MATR] was issued in
2008 as per the MFMA to augment the aforementioned provisions; and
AND WHEREAS a Municipal Land Management and Disposal Policy will give effect
to the above and reflect the methodology and procedures for the sale and letting of
various types of properties In order to make available economic opportunities in the
Municipality for local investors; and
NOW THEREFORE the Breede Valley Municipal Council adopts the Municipal Land
Management and Disposal Policy as set out in this document.
PART 2: DEFINITIONS
“BBBEE Act” means the Broad-Based Black Economic Empowerment Act, 2003
(Act No. 53 of 2003);
“BBBEE” means Black Economic Empowerment, which includes the economic
empowerment of all
black people including women, youth, people with disabilities and people
living in rural areas, through diverse but integrated socio-economic strategies
that include, but are not limited to –
(a)
increasing the number of black people that manage, own and control
enterprises and productive assets with particular reference to
preferential population groups;
(b)
facilitating ownership and management of enterprises and productive
assets by communities, workers, co-operatives and other collective
enterprises;
(c)
human resource and skills development;
(d)
achieving equitable representation in all occupational categories and
levels in the workforce;
(e)
preferential procurement; and
(f)
investment in enterprises that are owned or managed by black people;
2
“BBBEE Enterprise” means an enterprise whose BBBEE score in terms of a sector
scorecard, which has been issued as a code of practice or in terms of the DTI
generic scorecard, is greater than or equal to 30% and has been verified by an
accredited Verification Agency and is in line with the Small Business Development
Act.
“calendar month” means a period extending from a date in one calendar month to
the preceding date in the following month;
“commercial service” means a commercial service as defined in section 1 of the
Municipal Asset Transfer Regulations;
“competitive bidding process” means a competitive bidding process referred to in
this policy, read with other applicable policies and legislation;
“competitive bid” means a bid in terms of a competitive bidding process;
“Constitution” means the Constitution for the Republic of South Africa Act,
1996 (Act 108 of 1996).
“councillor” means a member of Breede Valley Municipal Council.
“delegation” in relation to a duty, includes an instruction to perform the duty, and
“delegate” has the corresponding meaning.
“delegation authority” means :
“(a)
in relation to a delegation of a power or duty by a municipal council, means
the municipal council; or
(b)
in relation to a sub-delegation of a power or duty by another political structure,
or by a political office bearer, councillor or staff member of a municipality,
means that political structure, political office bearer, councillor or staff
member.”
“disposal” in relation to a capital asset, includes(a)
(b)
the demolition, dismantling or destruction of the capital asset; or
any other process applied to a capital asset, which results in loss of
ownership of a capital asset otherwise than by way of transfer of ownership;
3
“disposal management system” means the system contemplated in regulation 40
of the Municipal Supply Chain Management Regulations published in
Government Gazette, no 868 of 2005;
"emergency" means an emergency dispensation in which one or more of the
following conditions are present –
(a)
the possibility of human injury or death;
(b)
the prevalence of human suffering or deprivation of rights;
(c)
the possibility of damage to property, or suffering and death of livestock and
animals;
(d)
the interruption of essential services, including transportation and
communication facilities or support services critical to the effective functioning
of Breede Valley Municipality as a whole;
(e)
the possibility of serious damage occurring to the natural environment;
(f)
the possibility that failure to take necessary action may result in Breede Valley
Municipal Council not being able to render an essential community service;
and
(g)
the possibility that the security of the state could be compromised.
“high value” see asset transfer regulations.
"immovable property" includes, but is not limited to –
(a)
immovable property or any share therein registered in the name of a person
or entity, including, in the case of a sectional title scheme, a sectional title unit
registered in the name of a person or entity;
(b)
a right to an exclusive use area held in terms of a notarial deed of cession;
(c)
a real right registered against immovable property in the name of a person or
entity, excluding a mortgage bond registered against the property.
(d)
any share in a share block company as defined in section 1 of the Share
Blocks Control Act, 59 of 1980;
(e)
a "public place" or "public street" as described in the Integrated Zoning
Scheme of Breede Valley Municipality;
4
(f)
immovable property as defined in section 107 of the Deeds Registries Act,
1037 (Act 47 of 1937), and including property consisting of land, buildings,
crops, or other resources still attached to or within the land or improvements
or fixtures permanently attached to the land or a structure on it;
“In principle approval” means approval by Council to dispose immovable property
taking into account the requirements of regulation 7 of the Municipal Asset Transfer
Regulations and subject to compliance with the Breede Valley Municipal Supply
Chain management system;
“Municipal Asset Transfer Regulations (MATR)” refers to the Municipal Asset
Transfer Regulations promulgated in terms of the MFMA and published in
Government Gazette No. 31346 of 22 August 2008.
“Municipal Finance Management Act (MFMA)” refers to the Local Government:
Municipal Finance Management Act, 2003 (Act 56 of 2003).
“Municipal Manager” means a person appointed by Council in terms of section 54A
of the “Systems Act.”
“municipality” means Breede Valley Municipal Council in terms of the “Structures
Act”.
“non-viable property” means property that, owing to urban planning, physical
constraints or extent cannot be developed on its own or function as a separate entity
and that can therefore become functional only if used by an adjoining owner in
conjunction with such owner’s property;
“official” means an official as defined in section 1 of the MFMA;
“organ of state” means an organ of state as defined in the MATR;
“political office bearer” means the Speaker, Executive Mayor Deputy Executive
Mayor as referred in the “Municipal Structures Act.”
“political structure” means the council of the municipality or any committee or other
collective structure of the municipality, elected, designated or appointed in terms of
specific provisions of the “Municipal Structures Act.”
“PPPFA" means the Preferential Procurement Policy Framework Act, 2000 (Act
5 of 2000), including any Regulations promulgated in terms thereof from time to
time;
5
“Promotion of Administrative Justice Act”
Administrative Justice Act 2000 (Act 3 of 2000).
means
the
Promotion
of
“Property By-Law” means any by-law enacted by Breede Valley Municipality from
time to time relating to the management and administration of property;
“Property Portfolio” means a portfolio responsible for property transactions
contemplated in this Policy;
“Property Right” means a right to use, control or manage a Property for a period
exceeding a Calendar Month, as granted by Breede Valley Municipality without
ceding legal ownership in the Property. For the avoidance of any doubt, a servitude,
way leave or encroachment in, on, over or under property granted by BVM, or a
lease agreement entered into by BVM as lessor, constitutes a Property Right;
“Property Transaction” means either a Disposal of Property or the granting of a
Property Right;
“Public-Private Partnership” means a public-private partnership as defined in the
Municipal Public-Private Partnership Regulations promulgated under the MFMA
and published under GN R309 in Government Gazette No. 27431 of 1 April 2005;
“SCM Policy” means the Supply Chain Management Policy of BVM, as approved
and implemented in terms of section 111 of the MFMA, read with the SCM
Regulations;
“SCM Regulations” means the Municipal Supply Chain Management Regulations
promulgated in terms of the MFMA and published under GN 868 in Government
Gazette No. 27636 of 30 May 2005;
“Systems Act” means the Local Government: Municipal Systems Act, 2000 (Act
32 of 2000), including any Regulations promulgated in terms thereof from time to
time;
“Viable Property” means Property that can be developed and function as a separate
entity capable of registration by the Registrar of Deeds.
Words not defined in this Policy have the meaning assigned to them in the
Municipal Finance Management Act and the Municipal Asset Transfer
Regulations.
6
PART 3: LEGISLATIVE AND POLICY FRAMEWORK FOR THE MANAGEMENT
OF BREEDE VALLEY MUNICIPAL PROPERTY.ALIGNMENT WITH MUNICIPAL
STRATEGIC GOALS AND OBJECTIVES
The legislative framework for the management of the Breede Valley municipal
property is contained and governed in a number of pieces of legislation, including but
not limited to:
3.1.
the Municipal Finance Management Act (MFMA), in particular section 14,
which deals with disposal of capital assets;
3.2
the Municipal Asset Transfer Regulations (MATR), which governs –
3.2.1 the transfer and disposal of capital assets by municipalities and
municipal entities; and
3.2.2 the granting by municipalities and municipal entities of rights to lease,
use, control or manage capital assets;
3.2.3 the Property By-Law;
3.2.4. Supply Chain Management Policy of Breede Valley Municipal
Council;
3.2.5. Any other applicable legislation, regulations and policies that may
govern the disposal, letting or transfer of ownership of municipal land
and related activities that are not in contradiction with the primary
legislation referred to above.
3.3.
This Policy must be read together all principles recognised in terms of the
common law, especially relating to contracts and contract management.
PART 4: APPLICATION OF THIS POLICY
4.1.
CORE PRINCIPLES
This policy is applicable when council and the administration is considering
the transfer and/or disposal, as well as the granting of the right to use, control
or manage of immovable capital assets of council. The Municipality may:
4.1.1. alienate or let or permit to be built upon, occupied, enclosed or
cultivated any immovable property owned by the Municipality;
4.1.2. grant a servitude, way leave, encroachment or other rights on any land
of which the Municipality is the owner;
4.1.2.1.
subject to this policy document and the provisions of
applicable legislation; or
4.1.2.2.
unless it is precluded from so doing by law or the
conditions under which such property was acquired by
the Municipality.
7
4.1.3. enter into a contract which will impose financial obligations on the
Municipality beyond a financial year, but if the contract will impose
financial obligations on the Municipality beyond the three years
covered in the annual budget for that financial year, it may only do so in
accordance with the provisions of Section 33 of the MFMA; and
4.1.4. enter into a public-private partnership agreement, but only in
accordance with the provisions of Section 120 of the MFMA.
4.1.5 must aim to redress past land ownership patterns to reflect the
population demographics of the municipality.
4.1.6 ensure the protection or advancement of persons, or categories of
persons, disadvantaged by unfair discrimination.
4.2.
FIXED ASSET REGISTER
4.2.1. Breede Valley Municipal Council maintains a fixed asset register, which
format complies to the requirements of GRAP, GAMAP and any other
accounting standards prescribed in terms of legislation.
4.2.2. All departments within Breede Valley municipal council shall promptly
notify the Chief Financial Officer, who is responsible for the updating of
said register, about any amendments which has to be included in said
register.
4.3.
CATEGORIES OF MUNICIPAL LAND
Breede Valley Municipality owns various categories of immovable assets
which includes, land with restrictive title, heritage assets and commonage.
Said properties are managed in line with relevant legislation applicable to it.
4.4.
METHOD OF DISPOSAL OR TRANSFER
TRANSFER OR DISPOSAL OF IMMOVABLE ASSETS
4.4.1. The Municipality may not transfer ownership as a result of a sale or
other transaction or otherwise permanently dispose of immovable
property needed to provide the minimum level of basic municipal
services in accordance with Section 14(1) of the MFMA.
4.4.2. The Municipality may transfer ownership or otherwise dispose of
immovable property only after:
4.4.2.1.
a public participation process has been conducted to
facilitate the determinations the municipal council must
make in terms of sections 14(2)(a) and (b) of the MFMA in
the case of disposal of any capital asset with a total value
exceeding five percent of the total value of the immovable
assets of the Municipality in the financial year; and
8
4.4.2.2.
the municipal council has, in terms of sections 14(2)(a)
and (b) of the MFMA;
4.4.2.2.1. decided on reasonable grounds that the asset
is not needed to provide the minimum level of
basic municipal services;
4.4.2.2.2. has considered the fair market value of the
asset and the economic and community value
to be received in exchange for the asset in
accordance with Section 14(2) of the MFMA;
and
4.4.2.2.3. has after consideration of the content of the
above-mentioned provisions approved in
principle that the capital asset may be
transferred or disposed of.
4.4.2.3.
The public participation process in terms of the abovementioned provisions may only be authorised by the
municipal council. A request to the municipal council for
authorisation of a public participation process must be
accompanied by:
4.4.2.3.1. a valuation and the method used to determine
the value of the capital asset to be transferred
or disposed of;
4.4.2.3.2. the reasons for the proposed transfer or
disposal of the capital asset;
4.4.2.3.3. any expected benefits to the Municipality as a
result of the proposed transfer or disposal;
4.4.2.3.4. any expected proceeds to be received by the
Municipality from the proposed transfer of
disposal; and
4.4.2.3.5. any expected gain or loss to be realised or
incurred by the Municipality arising from the
proposed transfer or disposal.
4.4.3. Approval in terms clause 4.4.2.2.3. may be given subject to any
conditions, including:
4.4.3.1.
the way in which the capital asset is to be sold or
disposed of with reference to the Supply Chain
Management Regulations and policy;
4.4.3.2.
a price or minimum compensation for the capital asset;
4.4.3.3.
whether the asset may be transferred or disposed of for
less than its fair market value, in which case the criteria
set out in clause 4.4.9 must be considered, and
4.4.3.4.
a framework within which direct negotiations for the
transfer or disposal of the capital asset must be
9
4.4.4.
4.4.5.
4.4.6.
4.4.7.
10
conducted with another person, if transfer or disposal is
subject to direct negotiations.
A decision by the municipal council that a specific immovable property
is not needed to provide the minimum level of basic municipal services,
may not be reversed by the Municipality after that asset has been sold,
transferred or otherwise disposed of in accordance with Section 14(3)
of the MFMA.
Any transfer of ownership of immovable property must be fair,
equitable, transparent, competitive and consistent with the supply chain
management policy of the Municipality in accordance with Section
14(5) of the MFMA.
The Municipality is not obliged to consider a private request, commonly
called an unsolicited bid, received outside its normal bidding process.
But if Council does decide to consider said application, it shall request
the administration to, depending on the type of disposal to ensure that
said transfer or disposal is done in line with relevant legislative
prescripts.
The Municipality shall not transfer or dispose of a capital asset, unless
it has advertised its intention so to act by causing a notice to that effect
to be:
4.4.7.1.
affixed to the public notice boards of the Municipality,
satellite offices and libraries;
4.4.7.2.
published in a newspaper that is circulated within the area
of the town where the relevant property is situated;
4.4.7.3.
published on the official website of the Municipality, in
accordance with Section 21A of the Systems Act, in which
any person who wishes to object to the exercise of any
such intention, is called upon to lodge his/her comments,
objection or representations in respect of such intention in
writing with the Municipal Manager within a period of not
less than thirty days from the date of the publication of the
notice in the newspaper;
4.4.7.4.
considered the objections (if any) lodged in accordance
with the advertisement above, and
4.4.7.5.
if the municipal council has authorised the conduct of a
public participation process for the proposed transfer or
disposal of any immovable asset with a total value
exceeding five percent of the total value of the immovable
assets of the Municipality in the financial year, the
accounting officers must at least 60 days before the
meeting of the council at which the determinations
referred to in 6(1)(b) are to be considered:
4.4.7.6.
in accordance with section 21A of the Municipal Systems
Act, make public:
4.4.7.6.1.
the proposal to transfer or dispose of the
immovable asset together with the
information statement referred to above,
and
4.4.7.6.2.
invite the local community and other
interested persons to submit to the
Municipality comments or representations in
respect of the proposed transfer or disposal
of the capital asset, and
4.4.7.6.3.
solicit the views and recommendations of
the National Treasury and the relevant
provincial treasury in the matter.
4.4.8. The above-mentioned provisions do not apply to the transfer of
immovable property to another municipality or to a national or provincial
organ of state.
COMMUNITY VALUE
4.4.9. The community value to be received in exchange for an asset shall be
applicable and taken into consideration in accordance with Section
14(2)(b) of the MFMA, in the case of:
4.4.9.1.
sales to registered social care organisations / institutions
in which case the purchase price of such immovable
property shall be fixed at a minimum of 50% of the fair
market value except in cases where the Municipality
taking into account the economic and community value
received in return for the asset decides otherwise. Such
sales shall be subject to:
4.4.9.1.1.
each case being considered on its own
merit;
4.4.9.1.2.
a reversionary clause being included in the
relevant deed of sale;
4.4.9.1.3.
Council’s pre-emptive right being registered
in the relevant title deed;
4.4.9.1.4.
the calling of tenders in those cases where
there are more than one applicant interested
in acquiring land for a specific use;
4.4.9.1.5.
a successful application in this regard to the
National Treasury in terms of Section 170 of
the MFMA in cases where it amounts to a
departure from the MFMA or applicable
Regulations, and
4.4.10.
In the case of immovable properties referred to in the Housing
Act, 1997 (Act 107 of 1997), or any ensuing act, in which case
11
such properties shall be sold/let as provided for in that act
and/or relevant council policy.
ALIENATION OR LEASING
4.4.11.
Alienation or leasing must be effected by means of public
competition, except in the instances detailed in paragraphs 4.4.9
and 4.4.43 – 4.4.52.
4.4.12.
The Municipality, as a rule, bearing in mind the provisions of this
policy, with the exception of cases referred to in clauses 4.4.9
and 4.4.43, shall not:
4.4.12.1.
let immovable property at a lower rental than the rental
determined;
4.4.12.2.
sell, alienate or dispose of immovable property, grant a
servitude or alienate a right at a lower amount than the
amount at which it has been valued;
4.4.12.3.
exchange immovable property for other property if the
amount at which the other property has been valued is
lower than the amount at which the immovable property
which the Municipality wishes to exchange, has been
valued, except in cases when the public interest or the
plight of the poor demands otherwise taking into account
the provisions of Regulation 13(2) of the Local
Government: Municipal Finance Management Act, 2003 Municipal Asset Transfer Regulations and subject to a
successful application in this regard to the National
Treasury in terms of Section 170 of the MFMA.
4.4.13.
The established price for property to be disposed of or leased by
way of a competitive process will be determined in such a way
that it corresponds with a fair market value and must include the
recoverable development costs such as municipal services,
advertising and survey costs. The fair market value or the rental
amount of property shall be determined by an independent
professional valuer or professional associated valuer registered
in terms of the Property Valuers Profession Act, 2000 (Act 47 of
2000), or any ensuing act at the cost of the purchaser.
4.4.14.
In assessing tenders, the Municipality may consider the total
cash value of the packages offered by the tenderers, where
such packages are permissible in terms of the conditions of
tender. In other words, where the actual amounts tendered are
roughly similar, but a particular tenderer, for example, also offers
to make improvements to the property, the cash value of such
improvements, which proposed improvements may not be
12
4.4.15.
4.4.16.
4.4.17.
4.4.18.
4.4.19.
4.4.20.
4.4.21.
13
deviated from, may also be taken into consideration to
determine the highest tender.
Where immovable property is alienated or leased for a specific
type of development project, including a business project, and
the specific type of development which the Municipality is
prepared to allow is of importance, the Municipality may call for
development proposals, which may include a monetary offer. In
such a case, the price offered for the immovable property by the
developer will only form part of the total package.
Should the Municipality consider it desirable not to accept the
highest tender or offer or decide to accept a particular
development proposal in which the amount tendered is not the
highest offer, the reasons for this decision must be fully set out
and recorded in the minutes of the bid adjudication committee
meeting in question and if applicable the minutes of the appeal
tribunal.
In cases where tenders are according to the findings of the bid
adjudication committee identical and the provisions of
paragraphs 4.4.15 and 4.4.16. are not applicable, the successful
tenderer may be determined by the drawing of lots in the
presence of the involved parties.
Immovable property sold or let by the Municipality shall be
inspected at least once a year by the Municipality to ensure
compliance with the terms and conditions of the agreement of
sale or lease.
The Municipal Council must, when considering any proposed
transfer or disposal of a capital asset, take into account the
aspects listed in Regulation 7 of the Local Government:
Municipal Finance Management Act, 2003 - Municipal Asset
Transfer Regulations.
The Municipality shall at all times when considering the
alienation of its immovable assets, take into consideration the
Municipality’s obligation to, as part of its process of integrated
development planning take all reasonable and necessary steps
within the framework of national and provincial housing
legislation and policy to identify and designate land for housing
development in terms of the Housing Act, 1997 (Act 107 of
1997).
Where immovable property is alienated or leased the municipal
council may set specific requirements to ensure that black
people including women, youth, people with disabilities and
people living in rural areas are protected or advanced by setting
specific requirements in the disposal request, bid document or
request for proposals for;
(a) the management, ownership and control of enterprises;
(b) community value, and social responsibility programmes; and
(c) BBBEE Enterprises
CONDITIONS OF SALE
4.4.22.
4.4.23.
4.4.24.
4.4.25.
4.4.26.
4.4.27.
4.4.28.
All costs pertaining to a transaction shall be borne by the buyer,
e.g. survey, advertisements, valuation, rezoning, relocation or
provision of services where necessary, etc. The Municipality
may, however, waive its right to claim the costs should it be to
its advantage to bear the costs. Where necessary, a deposit to
cover the costs may be required.
Should existing services need to be relocated or secured by
means of the registration of a servitude in favour of the
Municipality as a result of the sale of a immovable asset then all
related costs shall be for the account of the purchaser.
Small areas of land such as closed roads or portions of public
place sold to an adjacent owner must be consolidated with the
existing property of the adjacent owner, unless circumstances
exist which, in the opinion of the Municipality, make such
consolidation undesirable.
Where immovable property is sold for development, a condition
must be included in the Deed of Sale stipulating that such
development must be completed within two years from date of
registration. Likewise a condition must be included in the
agreement to provide for forfeiture in the event that the
development has not been completed within the required time
period, unless an extension has been granted by the
Municipality.
Save with prior approval, the property alienated may only be
used for the purpose for which it was originally sold and
purposes permitted by town planning scheme applicable for
such purposes.
The agreement of sale shall be finalised and concluded within
60 days from the date of the Municipality’s official written
request and registration must be effected within 60 days of
signature of the agreement by both parties. Failure to comply
shall cause the sale to lapse.
The agreement must contain a suspensive condition in respect
of property which is sold subject to approval in terms of land use
planning legislation.
CONDITIONS OF LEASE
14
4.4.29.
All costs pertaining to a transaction, e.g. survey, advertisements,
valuation, relocation or provision of services where necessary,
shall be borne by the Lessee. The Municipality may, however,
waive its right to claim all or any portion of the costs. Where
necessary a deposit to cover the costs may be required.
4.4.30.
The Municipality may:
4.4.30.1.
enter into a contract which will impose financial
obligations on the Municipality beyond a financial year,
but if the contract will impose financial obligations on the
Municipality beyond the three years covered in the annual
budget for that financial year, it may only do so in
accordance
with the provisions of Section 33 of the
MFMA; and
4.4.30.2.
enter into a public-private partnership agreement, but only
in accordance with the provisions of Section 120 of the
MFMA.
4.4.31.
An agreement for the lease of municipal fixed property shall be
in writing stipulating the terms and conditions of the contract or
agreement, which shall include at least the following provisions:
4.4.31.1.
the period of said lease agreement;
4.4.31.2.
a complete description of the property being leased;
4.4.31.3.
the amount of the rental, including the escalation date and
rate of increase of said rental per annum;
4.4.31.4.
the termination of the contract or agreement in the case of
non- or underperformance;
4.4.31.5.
dispute resolution mechanisms to settle disputes between
the parties;
4.4.31.6.
periodic review of the contract or agreement once every
three years in the case of a contract or agreement for
longer than three years;
4.4.31.7.
any other matters that may be prescribed; and
4.4.31.8.
escalation in terms of paragraph 4.4.34 of this policy.
4.4.32.
No immovable property shall be sub-let and no lease may be
ceded or assigned without the prior written approval of the
Municipality.
4.4.33.
An owner of immovable property who leases adjoining municipal
property may be substituted by his successor in title for the
duration of the remainder of the lease term.
4.4.34.
Rental, except where it is decided otherwise by the Municipality
shall escalate annually by a percentage fixed in accordance with
the prevailing consumer price index (all items).
4.4.35.
The lessee shall, as a rule, be liable for the payment of rates
and service charges in respect of the properties listed in the
current valuation role. In the case of leases to certain social care
15
users at rentals lower than market value the Municipality may
consider granting a rebate on rates in accordance with the rates
policy of the Municipality.
4.4.36.
The letting of lanes, public open spaces, road reserves and the
like shall be subject to the following:
4.4.36.1.
closing off/securing by the lessee of the leased area to the
satisfaction and discretion of the Municipality;
4.4.36.2.
the lessee shall be responsible for the cost of relocation or
installation of services when required and for the securing
of servitudes; and
4.4.36.3.
the closure of the lanes, public open spaces and road in
terms of the Ordinance shall be done at the cost of the
lessee.
4.4.37.
The lessee shall indemnify the Municipality against any possible
claims arising from the lease or use of the immovable property.
4.4.38.
Where land is leased for development, a condition shall be
included in the lease agreement stipulating that such
development shall be completed within two years from date of
conclusion of the lease agreement. Likewise a suspensive
condition shall be included in the lease agreement to provide for
cancellation in the event that the development has not been
completed.
4.4.39.
Save with prior written approval of the Municipality the property
may only be used for the purpose for which it was let.
4.4.40.
The Municipality shall at all reasonable times be entitled to enter
and inspect the immovable property.
4.4.41.
The lessee shall be responsible for maintaining the leased
property including all improvements thereon to the satisfaction of
the Municipality.
4.4.42.
Improvements provided by the lessee and which the Council
wishes to retain, shall revert, free of charge, to the Municipality
once the lease period has terminated and/or in the event the
agreement, due to breach of conditions, has been cancelled.
Alternatively, agreement may be reached to the effect that the
lessee may remove any improvements erected from its own
funds within three months of termination of the lease agreement,
failing which such improvements shall revert to the Municipality
free of charge without damage and if provided for in the
agreement. The lessee shall be liable for the cost involved in the
removal of such improvements not required by the Municipality.
LEASE AGREEMENTS
16
4.4.43.
Lease agreements for a term up to 3 years entered into under
this policy may be renewed without applying the provisions of
clause 4.4.7, but not exceeding 3 years in total.
4.4.44.
Immovable property let for short-term periods up to 12 months
without the option of renewal need not be advertised in terms of
clause 4.4.7, but shall be subject to inter alia the following:
4.4.44.1.
the lessee shall be responsible for all costs regarding
services, ablution facilities, etc. if required;
4.4.44.2.
the Municipality shall determine the rental;
4.4.44.3.
the lessee shall undertake in writing to compensate the
Municipality for damages caused to the property for
whatever reason.
4.4.44.4.
the lessee shall indemnify the Municipality against any
claims.
OUT OF HAND SALE AND LETTING
4.4.45.
Whenever a number of comparable immovable properties are
offered for sale or lease by public competition and there being
any remaining immovable property unsold or not being leased
after such public competition such remaining properties may be
sold, subject to the provisions of clause 4.4.6., or leased out of
hand by the Municipality at the average realised price obtained
for properties sold or leased in accordance with the public
competition process. Such price shall be valid for a maximum
period of 12 months calculated from the date of the adjudication
of the relevant public competition process.
4.4.46.
In the case of the out-of-hand lease of immovable property to
registered social care organisations/institutions, the rental shall
be determined by the Municipality.
4.4.47.
Closed streets and lanes, public open spaces and odd lots of
land which can be of no practical use to any other person may
be sold/leased out of hand to adjoining property owners,
provided that 4.4.47.1.
written notice have been served on all adjoining property
owners; and
4.4.47.2.
where necessary that an advertisement be places in a
local newspaper;
4.4.47.3.
the selling price/rental shall be at fair market value,
provided that the Municipality shall determine the rental of
land for garden purposes.
4.4.48.
Immovable property may be sold/leased out of hand to other
spheres of government and other municipalities. All such
17
immovable property transactions shall be considered at a fair
market value basis, except in the following cases:
4.4.48.1.
where immovable property was acquired for the
development of a less formal township and such township
is to be transferred to the Municipality at a later stage;
4.4.48.2.
where the property will be used for projects with a view to
social and economic upliftment of a previously
disadvantaged group.
4.4.49.
Immovable properties may be sold out of hand to existing
tenants who have leased such premises for five years or longer
on condition that the immovable property is sold at fair market
value.
4.4.50.
Immovable property may be sold/leased out of hand in
exceptional cases where the Municipality is of the opinion that
public competition would not serve a useful purpose or that it is
in the interest of the community and the Municipality, and where
none of the conditions as set out in this policy document
provides for such exception is permitted, and where they are not
in conflict with any provision of this policy document. In such
cases the full reasons for the Municipality preferring such out-ofhand sales or leases shall be recorded in the minutes of the
council meeting concerned.
4.4.51.
Odd lots of land which can be of no practical use to any other
person may be sold, out of hand subject to the provisions of
clause 4.4.7 or leased out of hand to the owner of an adjoining
property.
4.4.52.
Immovable property acquired by a municipality for public
purposes or in the community's interest, may be leased out of
hand to any applicant for temporary use until such time as the
property is required for development.
4.4.53.
Houses may be leased out of hand to employees of the
Municipality, on condition that rentals are market related.
4.5.
PROJECTIONS, PROJECTING STRUCTURES AND ENCROACHMENTS
4.5.1. The Municipality may, subject to such conditions as it may deem fit
allow the construction of any colonnade, veranda, balcony, bay
window, pavement light, showcase or other encroachment on or over
any part of a public road, and pavement opening in or under any public
road or any council property. The latter will however only be permitted,
subject to:
4.5.1.1.
an application to erect or construct an encroachment on,
under or over any public road, or any immovable property
owned by or vested in the Council, must apply to the
18
Building Control Officer on a form prescribed by the
Council for that purpose, as well as submitting an
application to the
Director: Strategic Support Services, for said
encroachment.
4.5.1.2.
all prescripts of the Breede Valley Encroachment by-law
has been complied with.
4.5.1.3.
no such encroachment shall be partially or wholly
enclosed or fenced by any means whatsoever,
permanently or otherwise, for the exclusive use of the
adjacent property owner, unless approved by council; and
4.5.1.4.
an encroachment fee shall be charged by the Municipality
and a formal agreement need to be entered into in
respect of the above encroachment; and
4.5.1.5.
the Municipality shall have the right of free access to the
encroachment at all times for inspection, maintenance
and repair of any services which may traverse the
encroachment or to install such services in which case
the Municipality shall not be liable for any damage to the
encroachment which may arise from such inspection,
maintenance, repair or installation, or
4.5.2. Council shall permit encroachments of garden areas onto commonage,
public open spaces or conservation areas, for amongst others
enclosures or exclusive use, for gardening or any other purpose,
provided inter alia that:
4.5.2.1.
a written applications accompanied with an application
fee tantamount to council’s fee in respect of applications
for departure, for such encroachments shall be submitted
to the Municipality;
4.5.2.2.
the Manager: Town Planning or his duly authorised
delegate shall:
4.5.2.2.1.
cause the said application to be advertised
in terms of this policy;
4.5.2.2.2.
where objections against the said
application are received, submit it to the
applicant for his/her comment;
4.5.2.2.3.
obtain the comment from all municipal
directorates;
4.5.2.2.4.
submit the application and all relevant
documents to Council or its delegee for
approval;
4.5.2.2.5.
notify the applicant of the Council’s or its
delegee of the decision and where
applicable furnish him/her with a copy of
19
4.5.3.
4.5.4.
4.5.5.
4.5.6.
4.5.7.
any conditions imposed by the Council or its
nominee; and
4.5.2.2.6.
issue a permit to the successful applicant to
give effect to the approval of the application.
the planting of trees, shrubs and alien lawn or the erection of seating,
statuary or other similar objects, are not permitted, except with council
approval.
no encroachment shall be partially or wholly enclosed or fenced by any
means whatsoever, except with council approval and subject to
conditions prescribed by council.
an annual encroachment fee, determined by council, will be
levied/proportionally levied on successful applicants for the right
obtained to encroach.
Council shall permit the use of municipal land for outdoor seating
adjoining a restaurant, provided inter alia that:
4.5.6.1.
the provisions of this policy is complied with; and
4.6.6.2.
the safe movement of pedestrians is not hampered.
The Municipality may reduce the extent of a public place or public
street which is encroached upon by the extent of the encroachment or
by such greater extent as may, in its opinion, be desirable.
PART 5: SHORT TITLE AND COMMENCEMENT
This policy is called the LAND MANAGEMENT AND DISPOSAL POLICY and shall
commence after Council approval.
20